San Antonio Injury Attorney Blog

Do you remember the OJ Simpson criminal and civil trials of the 1990s? In that case, in June 1994, Nicole Simpson and Ronald Goldman were found stabbed to death. Criminal charges were filed shortly thereafter against OJ Simpson for murder. What people fail to remember is that in May 1995, a wrongful death civil lawsuit was filed against OJ Simpson on behalf of the Goldmans. However, the civil suit trial did not commence until after the criminal trial ended in the acquittal of Simpson in October 1995. The civil trial commenced in October 1996 and resulted in a jury finding of liability against Simpson with compensatory damages of $8.5 million.

People often wonder about the disparate results between the civil and criminal cases. The answer lies in the standard of proof. The criminal case required a standard of proof of beyond a reasonable doubt, while the civil case requires the lesser standard of preponderance of evidence , which means a greater than 51% chance that Simpson killed Goldman. So it would be much easier to obtain a finding of liability in the civil matter than in the criminal one.

The law allows a Texas civil action for assault by infliction of bodily injury if the defendant acted intentionally, knowingly, or recklessly; made contact with the plaintiff; and caused bodily injury to the plaintiff. The action of personal injury assault can also be brought against the employer if the assault was committed by the employee within the course and scope of his employment. This type of situation is known as vicarious liability under the doctrine of respondeat superior. A defendant can also be held liable for assault under the theory of participatory liability if the defendant aided and abetted another to commit the assault or participated in a conspiracy to commit the assault.

The type of contact needed to prove assault can be direct or indirect. Indirect contact examples can be a police officer who crashes his patrol car into the plaintiff's car or a defendant who shoots a plaintiff with a gun.

To prove injury, a San Antonio personal injury lawyer must demonstrate the plaintiff suffered some pain, illness, or impairment due to the contact per Texas Penal Code Section 1.07(a)(8). The type of contact must be greater than mere offensive touching.

In a civil action for assault, the plaintiff can recover actual damages including damages for physical pain, mental anguish, medical care, loss of earning capacity, physical impairment, and disfigurement. The plaintiff can also recover exemplary or punitive damages. Plaintiff can also recover prejudgment and postjudgment interest as well as court costs. Generally, attorney fees are not recoverable in an assault action.

There is a 2 year statute of limitations in Texas civil assault claims regardless of whether there is an ongoing criminal investigation / trial. The statute of limitations for sexual assault is 5 years. The clock begins running when the assault occurs. There are various defenses to a claim for assault damages, including consent to the defendant's conduct and self defense provided the use of deadly force is used to defend against unlawful deadly force. The defendant does not have a duty to retreat if he had a right to be at the location, did not provoke the plaintiff, and was not engaged in criminal activity. A defendant can assert the defense of justified force to protect a third party or protect his property.

There are various types of losses a Texas personal injury attorney can recover for an injured claimant. In San Antonio wrongful death cases , for example, medical, funeral, and burial expenses can be recovered in a survival action brought by the executor of the estate. Medical and funeral expenses are also recoverable in wrongful death actions, but recovery is strictly limited to those expenses actually incurred by the beneficiaries.

In an action for wrongful death, the beneficiary can recover medical expenses provided the beneficiary had a legal obligation to pay for those expenses. In addition, an estate can recover punitive damages in a survival action, but parents cannot recover exemplary / punitive damages for a child's death. Any expenses must also be reasonable in order to have recovery.

In a survival or wrongful death action, there is also recovery for pecuniary losses such as the value of the care, support, and services, a plaintiff would have received if the deceased individual had lived. There must be evidence the deceased family member provided such support and services. Expenses for psychological counseling also fall under the realm of pecuniary losses and may be recovered in wrongful death actions.

When an adult child has died, the parents are entitled to pecuniary damages relating to care and maintenance that the parent would have received from the adult child if he had not died. /for example, in the Ledezma case, the jury awarded $215,000 in pecuniary losses to the mother of an adult child who had supported his family since the age of seven.

Under the Texas Wrongful Death Act, the beneficiary may assert damages for loss of inheritance. The loss of inheritance damages are determined by estimating the amount the decedent would have left the beneficiaries if not for the premature death or accident. If for some reason, the deceased injured party would have outlived the beneficiary, then inheritance damages would be denied. There must also be enough evidence in the record to place a dollar figure on the likely estate value at the end of a normal life as well as the present value if the estate in order for such inheritance damages to be awarded.

Wrongful death claimants and survival beneficiaries are also entitled to lost earnings. A loss of earnings capacity damages claim is not limited by the deceased's salary prior to injury. For example, a plaintiff has been found entitled to loss of earnings capacity damages when the deceased was unemployed at the time of injury.

There is a distinction between loss of earnings capacity damages and loss of earnings damages. In contrast to loss of earnings capacity, to obtain loss of earnings damages, the wrongful death plaintiff must demonstrate with reasonable certainty that actual amount of lost past earnings. It must also be shown that the plaintiff who was killed had capacity to work prior to the injury and the injury seriously hurt that capacity. Moreover, any past employment that can illuminate what the plaintiff's future earnings could have been can be introduced. Evidence of the weaknesses and degenerative nature that resulted from personal injury and plaintiff's work-life expectancy are additional factors.

Medical and funeral expenses, pecuniary losses, loss of inheritance, loss of earning capacity, and loss of earnings are some of the economic damages a Texas wrongful death lawyer will pursue for you in a San Antonio serious personal injury accident or malpractice claim.

Most Texas medical malpractice cases require experts to prove causation. There are exceptions where a jury does not need an expert to decide causation. Those medical malpractice cases are limited to those cases where a jury can use its own experience and common sense to determine causation. For example, a jury will not need an expert to establish a causal connection when a doctor inadvertently leaves a wire in a woman's breast.

Another example is an elderly plaintiff who sustained personal injury at a Texas nursing home after he fell while walking down a hall in the office and sustained serious brain injuries . The defendants moved to dismiss the case on the basis that the plaintiff failed to provide expert testimony. However, the Court denied the dismissal indicating that the medical provider's failure to provide an escort or medical device to assist the plaintiff was within the realm of the jury's common sense and general experience. Even the defendants' expert testified that the plaintiff required an escort to prevent falling.

In order for the court to admit expert testimony, the expert must be qualified in the particular area and the admitted facts must support the expert opinion. For example, on Texas negligence claims against a physician or hospital, the expert should be a doctor who can testify on the alleged departure from accepted standards of care. The same logic applies to Texas dental malpractice claims or Texas podiatrist malpractice claims . A nurse is generally not qualified to render an opinion on the medical causation of injury unless that opinion is used in conjunction with another doctor's opinion.

Rule 702 of the Texas Rules of Evidence governs the admission of expert testimony. First the expert must be qualified. Second, his proposed testimony must have scientific or technical foundation. The trial court has the discretion to apply such standards to determine the admission of expert testimony.

In Robinson, a Texas product liability case , the plaintiff sued a pesticide manufacturer for a product that damaged their pecan trees. Initially, despite the plaintiff's expert credentials, the plaintiff's expert was not allowed to testify due to alleged unreliable testimony. The Texas Supreme Court in response adopted the Daubert standard indicating that both relevancy and reliability were needed for admissibility of an expert's testimony. The Court cited such factors as the extent of scientific testing of the expert's theory, the amount of subjective expert interpretation, peer review of the theory, potential rate of error, acceptance of the theory by the scientific community, and non-judicial uses of the theory.

As you can see, a Texas personal injury lawsuit begins and ends with the quality of the expert. The expert's theory must be relevant and reliable. If you can overcome the hurdles involved and get the expert's testimony admitted, a Texas medical malpractice or San Antonio wrongful death attorney can recover what you deserve.

The lost chance of survival doctrine in medical malpractice cases does not exist in Texas. Ultimately, Texas medical malpractice laws state that a plaintiff's ability to recover monetary and punitive damages for personal injury is barred where the medical practitioner's negligence deprived the plaintiff of only a 50% or less chance of survival.

To illustrate, in the Milo matter, the patient underwent a hernia operation. Soon thereafter, he began to complain greatly of pain. It turned out that the surgeon's sutures had rotted, leading to sepsis and shock. Milo was placed on a respirator. A different doctor tried to take Milo off the respirator and after several attempts, Milo went into sudden cardiac and respiratory arrest, causing brain damage and her death 4 months later. The ultimate question before the court was whether Milo would have survived if the other doctor had not tried to take her off the respirator. The plaintiff's expert testified that before the debacle with the respirator, Milo only had a 40% chance of surviving her pre-existing condition with the sutures. Because the negligence dealing with the respirator reduced the plaintiff's already less than even chance of survival, the Texas Supreme Court barred recovery for the respirator negligence as a matter of law.

In Rodriguez, parents of a baby brought a Texas medical malpractice claim for failure to give the mother antibiotics to the mother and infant, resulting in the baby's death. The defendants argued that the plaintiffs failed to provide an expert who testified that an earlier provision of the antibiotic would have saved the infant. The court barred recovery because the experts could not testify that the baby's chance of survival would have been greater than 50% had he been administered the antibiotics.

In Hawley, plaintiff sued a hospital for failure to timely inform her of a colon cancer diagnosis known as "Duke's C" cancer. By the time she learned of the diagnosis a year later, she had developed an inoperable liver tumor. The defendant doctors and hospital argued that there was no evidence to prove that Hawley had a greater than 50% chance of survival with a Duke's C diagnosis. However, Hawley's medical providers indicated that with a Duke's C diagnosis, she had a 60-65% chance for survival as opposed to a Duke's D diagnosis in which she had a 0-30% chance of survival. The jury's verdict in favor of the plaintiff was upheld.

If you have been a victim of misdiagnosis or medical negligence that has caused a Texas wrongful death or personal injury, contact a wrongful death San Antonio and greater Texas lawyer today!

In San Antonio and greater Texas, there have been several key personal injury cases in the area of premises liability in 2009.

In one case, a guest at a condominium severed his finger while sitting in a pool-side chair. The court held there was no evidence that the condo association had actual or constructive knowledge of the broken weld in the chair. A San Antonio personal injury attorney can aggressively pursue evidence of constructive or actual knowledge in premises liability cases.

In a case against the City of San Antonio alleging benzene exposure from a nearby closed municipal landfill, the Texas Supreme Court found there was no expert evidence as to the level of benzene in the plaintiff’s daughter. There were also questions concerning the association between the mother’s exposure to benzene and the daughter’s leukemia in utero. Oftentimes, benzene lawsuits in Texas hinge on the quality and strength of expert opinions on causation.

In another case, a contractor sued for personal injuries against the San Antonio property owner
when he fell through the roof while trying to repair an air conditioning unit. The court denied the property owner’s motion for summary judgment, because the plaintiff’s claim arose from the condition of the roof, not the air conditioner.

In another case out of Corpus Christi, the estate and family of a deceased inmate brought a Texas wrongful death action against a private correctional facility after the inmate was murdered by two inmates. Allegedly, the prison guards did nothing to stop the attack and the prison wardens laughed. $47.5 million was awarded in actual and punitive damages. The court held there was sufficient evidence to show negligence, and it supported the trial court’s spoliation instruction concerning the destruction of the prison’s surveillance tapes.

Although Texas reforms have put the breaks on a lot of Texas medical malpractice claims , there are still several great examples of medical negligence cases which can be brought by a Texas medical malpractice lawyer.

In one case, a patient fell from a hospital bed and alleged several acts of negligence. After initially being dismissed for failure to file a timely medical report, the Texas Supreme Court reversed and held that the claim that the claim the bed had been negligently installed was not considered a health care liability claim. Nursing home negligence cases require extensive and aggressive litigation.

In another case, plaintiff’s daughter was sexually assaulted by a nurse’s aide, and the plaintiff sued two nursing homes for failure to file misconduct reports as required under the law. The plaintiff claimed the two (2) year statute of limitations for reporting medical malpractice was tolled on account of the daughter’s mental incapacity. The Appellate Court held that the failure to report misconduct was a health care liability claim and the tolling of the statute of limitations was inapplicable.

As you can see by these two cases, there are two (2) critical aspects to a medical malpractice case in Texas : the two year statute of limitations and the necessity of an expert report within 120 days of filing suit.

In a case involving Baylor Medical Center, plaintiff alleged medical malpractice when the emergency doctors failed to discover a cerebral hemorrhage which led to permanent brain damage. The Court accepted the report filed by the plaintiff’s expert as to causation and indicated the report did not have to eliminate every possible cause of injury. In another case involving Baylor College of Medicine, plaintiff sustained injuries during a knee surgery and sued for medical malpractice. The court accepted the expert report of the orthopedic surgeon as to causation.

Medical malpractice cases are harder than ever but you will never know unless you consult with a San Antonio and greater Texas medical malpractice attorney
as soon as possible.

Many plaintiffs now ask what can be recovered in a Texas wrongful death medical malpractice case . Under Texas Civil Practice and Remedies Code (TX CPRC ) Section 74.301, there is a cap of $250,000 on "non-economic" damages.

Non-economic damages compensate an injured plaintiff for physical pain and suffering, mental or emotional pain, loss of consortium (the services of a spouse), disfigurement, physical impairment, and other types of non-monetary losses.

Exemplary damages, also known as punitive damages, are those damages which are often assessed against defendants for reckless or malicious behavior. Juries award these types of damages for the defendants' behavior. Exemplary damages are not included in the cap for non-economic damages.

The limit of civil liability for non-economic damages for a physician or health care provider is $250,000. The civil liability of healthcare institutions such as hospitals is $250,000 for non-economic damages. Registered nurses fall under the realm of healthcare providers and would be subject to a $250,000 cap.

Even if there are multiple number of plaintiffs suing under the death of the single individual, the plaintiffs count only as on claimant for purposes of the cap. With multiple health care institutions, the most a medical malpractice plaintiff can recover in non-economic damages from personal injury is $750,000.

In Texas wrongful death cases , the limit for civil liability on a health care liability claim is $500,000 including exemplary damages. The cap does not include medical or hospital expenses incurred in the treatment of the injury. The cap applies regardless of the number of plaintiffs. In addition, the liability of any insurer for a healthcare defendant is limited to the cap, circumventing the Stowers doctrine which deals with insurer liability.

Those plaintiffs who are not seeking recovery for a wrongful death health care liability claim can expect to recover economic damages.

A Texas wrongful death attorney must know how to navigate costs to maximize recovery to a plaintiff given caps on non-economic and exemplary damages.

Texas Civil Practice and Remedies Code (CPRC) 82.008 creates a rebuttable presumption of no liability in certain Texas product liability personal injury cases. However, section 82.008(d) makes exceptions for certain manufacturing flaws o defects from the rebuttable presumption.

If the seller has properly demonstrated the presumption, then it is up to the Texas personal injury lawyer to demonstrate that the standard / regulation was not strong enough to safeguard the public from unreasonable risk of injury or damage. The other option is to prove that the manufacturer, either before or after he commenced marketing the product, kept information or misrepresented information to the federal government. Such withholding or misrepresentation of information would have altered the federal government's creation of a proper safety standard.

In almost every Texas products liability case, the defense attorney premises his defense on his client's compliance with government standards. Counsel will claim that ultimately the government gave the seller a de facto seal of approval. In response, the Texas personal injury lawyer will counter that the federal government’s standard has always been a minimum floor and is often outdated and incapable of creating safety.

Another tactic is to attack how the manufacturer communicated with the government about the adequacy of a safety regulation. Such a tactic will open up a tremendous amount of discovery about not only the product itself, but exactly what the manufacturer told the government about how to construct its standard. It is a somewhat confusing wording on the legislation, because it almost puts the manufacturer in a type of watchdog role on the government’s standards.

Under the bill, there is no exception to the presumption of no liability if the manufacturer misleads or omits key information about its products under the applicable regulations. This key provision allows plaintiff's counsel to obtain all communication between the manufacturer and government as to all information the manufacturer gave the government as well as any communication related to the government's regulation in general. You may recall that during the Vioxx litigation, there were allegations that Merck withheld key research data from the government that reflected an increased incident of serious cardiac injury.

CPRC 82.008(c) also creates a presumption of no liability if the formulation, labeling, and design of the products had to acquire a pre-market licensing or approval from the federal government. Provided the federal government gave pre-market licensing / approval of the product's design, risks, and benefits, then there would be a presumption of no liability.

A Texas serious personal injury attorney would attack this presumption by demonstrating that the standards of pre-market licensing could not have protected society from unreasonable risk of serious personal injury. Another option is to show the manufacturer withheld information from the government that was material to the product's performance and caused the plaintiff's injury. Withholding information must be relevant to the product's performance and causally related so that you may be successful in a Texas product liability lawsuit.

In a Texas pharmaceutical injury or medical device lawsuit, where the lawsuit centers on a failure to warn, TX Civil Practice and Remedies Code (CPRC) creates a presumption of no liability if the warnings associated with the product were not approved by the Food and Drug Administration (FDA) .

There are several ways a Texas medical device injury lawyer can overcome the presumption of no liability, First, he can show that the manufacturer deceived the FDA by omitting or distorting required information needed for pre-market government endorsement and licensing. Any deception in the withholding or distortion of information must be material to the Texas serious personal injury claim and the element of causation is present.

Another way to overcome the presumption of no liability is to demonstrate continued sale of the drug or medical device after the FDA mandated market removal or no longer endorsed the product.

Another way to overcome the presumption of no liability is to demonstrate "off label" use. An off label use occurs when doctors and drug companies begin using a pharmaceutical to treat a problem for which it did not originally receive government approval. If in fact, there was off label use, the presumption of no liability disappears. There are elements of proof associated with off label use. The injured plaintiff must prove that the healthcare provider and / or drug company promoted, advertised, or prescribed the off label use; the injured party used the product as it had been recommended, promoted, advertised, or prescribed; and there was a causal connection between the injury and the recommendations, promotion, advertisement, or prescription of the product.

Another way to overcome the presumption of no liability given compliance with the FDA requirements is that the defendant, either before or after pre-market government approval / licensing, bribed a public official in violation of 18 U.S.C. Section 201 and such conduct precipitated FDA warnings of the product to be substandard.

There has been some controversy over whether a State District Court judge can determine if material information was withheld from the FDA so that plaintiffs can overcome the presumption of no liability. One district court judge granted summary judgment in a Texas Vioxx case on the basis that the FDA is the only entity that can make a determination about whether a manufacturer was deceptive in the warnings information it provided. There have been several follow up cases which have criticized the decision.

Imagine you are driving on a nice sunny day in the heart of Texas, and your vehicle is suddenly impacted from the side by another vehicle moving at an extremely high rate of speed. After the initial shock wears off and you initially deal with the inevitable injuries of such a terrible accident, you come to find out that the police were chasing the person who collided with your vehicle.

The ultimate question in such a situation is as follows: Is the police officer or the Texas county municipality responsible for his conduct liable for a Texas wrongful death or personal injury caused by a vehicle being pursued by the police ?

The answer is … it depends. For example, in Draper vs. Los Angeles, the court ruled that while the police pursuit may have contributed to the reckless driving of a fleeing individual, the officers did not have a duty to allow him to escape. In addition, the court ruled that there was no requirement on the part of officers to warn other drivers to keep out of the way, and there was no evidence that the police were trying to force the fleeing individual to the curb.

In Pagels vs. San Francisco, the court ruled that the police had a duty to operate their vehicles with due care, and it made no difference whether the pursuit was close or near at the time of the collision with the other vehicle.

In contrast, in Myers vs. Town of Harrison, the widow of a taxi driver who was killed by a fleeing driver chased by the police, filed suit on behalf of her husband's estate. The pursued vehicle driver had been in a minor accident just prior to the chase. The court ruled that evidence of wet weather and road conditions over the course of the route of pursuit and the incredibly high speeds involved backed up the claim that that the police acted negligently. It did not matter that the police later determined after the accident that the vehicle had been stolen.

There are certain elements that go into a determination of whether a police pursuit is negligent where the fleeing driver's reckless driving causes a San Antonio auto or truck accident .

- How long was the length of the high-speed chase?
- What were the road conditions?
- What was the time of day of pursuit?
- Was the driver of the pursued car driving in a reckless manner and endangering the public before the police began to chase him, creating a situation where the police had to act to protect the public safety?
- What was the proximity of the nearest police vehicle in pursuit just prior to the collision?
- What were the speeds of the vehicles involved in the pursuit?
- Was the police officer negligent in his conduct of the stop and pursuit? (Example: the officer allows the suspect to leave the car ajar and engine running at the time of the stop and left him unrestrained, allowing him to escape.)
- Did the police flash and sound their sirens during the course of the pursuit so as to alert innocent drivers / pedestrians?
- Did the police violate their own department's pursuit policy?

The ultimate question in which these factors play a role in answering is whether the police should have abandoned the chase out of consideration of safety to the public.

In our next blog, we will discuss some additional cases in which the police and the governing municipality were in fact found negligent for an accident caused by a fleeing driver during a police chase.

A negligent police chase in San Antonio and greater Texas can occur whether the police impacted your vehicle or acted negligently so as to indirectly cause another driver to injure you. Whether you have been affected in a personal injury car accident or a San Antonio wrongful death trucking accident, contact a San Antonio personal injury lawyer without delay.

Imagine that your child is severely burned when the fumes from an overturned gas can burst into flames. Why does this happen ? Could it be the flames of the nearby gas water heater ? Each year, this scenario plays out multiple times in San Antonio and throughout Texas and the United States. Believe it or not, these injuries are preventable and often enough, the water heater manufacturer, the gasoline can maker, and even the natural gas company may be held accountable for negligence. It is imperative to consult with a San Antonio and greater Texas personal injury attorney immediately in such cases.

Even more disturbing is the higher incidence of accidental explosions from gas leaks. Because natural gas is colorless and odorless, a chemical malodorant must be added so that a person can smell the gas. Equipment called "odorant pots" inject the malodorant into the distribution lines of the natural gas.

Generally, an investigation of accidents involving natural gas will turn up records that demonstrate improper maintenance of the odorant pots or no levels of malodorant in the pots. In addition, the odorant may not work properly due to oxidation in the lines, creating a potential case against the manufacturer of the odorant. Finally, a Texas natural gas supplier who regularly inspects an injured party's appliances and piping may be negligent for failing to detect potential leaks.

If you or a loved one has been the victim of a gasoline spill or natural gas explosion, you should contact a San Antonio and greater Texas personal injury lawyer immediately as these cases are complex and require rapid preservation of evidence.